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Constitution Unit Report on Fixed-Term Parliaments

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Fixed Term Parliaments Professor Robert Hazell The Constitution Unit, University College London August 2010 ISBN: 978-1-903903-59-9 Published by The Constitution Unit Department of Political Science UCL (University College London) 29-30 Tavistock Square London WC1H 9QU Tel: 020 7679 4977 Fax: 020 7679 4978 Email: [email protected] Web: www.ucl.ac.uk/constitution-unit/ © The Constitution Unit, UCL 2010 This report is sold subject to the condition that it shall not, by way of trade or otherwise, be lent, hired out or otherwise circulated without the publisher’s prior consent in any form of binding or cover other than that in which it is published and without a similar condition including this condition being imposed on the subsequent purchaser. First published August 2010 2 Foreword The new Conservative-Liberal Democrat coalition government has an ambitious and wide ranging agenda for political and constitutional reform. One of the main items, on which it is proceeding apace, is the proposal for fixed term parliaments. This featured in the Programme for Government, published on 20 May; with further detail given by the Deputy Prime Minister in a statement to the House of Commons on 5 July. On 22 July the government introduced its Fixed Term Parliaments Bill, just before the summer recess, and indicated that Second Reading should take place in mid September. The rapid pace has allowed almost no time for public consultation or debate. There has been no Green or White Paper. The bill has not been published in draft, with time allowed for pre-legislative scrutiny. The new Political and Constitutional Reform Committee in the Commons will hold some quick evidence sessions in September; and the Constitution Committee in the Lords is to conduct an inquiry into fixed term parliaments in the autumn. This briefing is being submitted as evidence to both Select Committees. It is also being published to facilitate a wider debate, and to put into the public domain evidence about the experience of fixed term parliaments in other countries. The Unit’s work on this subject started in 2006, when one of our summer interns, Claude Willan, did a lot of research and left us a draft briefing. This was revised and updated by two more interns, Ceri Lloyd-Hughes and Ruchi Parekh, with further help from Jessica Carter. I am grateful to all of them for their excellent research and support for this project. Without our interns we would not be able to produce nearly as many reports, nor such high quality work as we manage to do. Robert Hazell August 2010. 3 Table of Contents Summary of Key Points…………………………………………………………...5 1 The current system in the UK……………………………………………...6 2 The coalition government’s proposals…………………………………..8 3 Arguments for and against fixed terms………………………………...10 4 The length of the fixed term………………………………………………12 5 Comparative experience from other countries………………………..16 6 Recent reform proposals at Westminster……………………………...22 7 Mid term dissolution……………………………………………………….25 8 The Royal Prerogative……………………………………………………..34 9 Entrenchment and justiciability…………………………………………37 10 Role of the House of Lords……………………………………………….39 Bibliography……………………………………………………………………….41 4 Summary of Key Points Fixed term parliaments remove the Prime Minister’s power to decide the date of the next election. They should create greater electoral fairness and more efficient electoral administration, and enable better long term planning in government. Their potential disadvantage is a loss of flexibility and accountability. Fixed term parliaments are a big constitutional change. Yet the government’s Bill has been introduced with no public consultation, no Green or White Paper, no draft bill. The legislation should not be rushed. It could still be passed with all party support: the Labour party also had a manifesto commitment to fixed term parliaments. The key issues to decide are: the length of the fixed term; how to allow for mid term dissolution; how to reform the prerogative powers of dissolution and proclamation. The fixed term should be four years, not five. The norm in other Westminster parliaments with fixed terms is four years; as it is in Europe. To avoid clashes with devolved or European elections, general elections should be held in October, with the next one scheduled for October 2014. The two thirds majority for mid term dissolution is aimed mainly at majority governments. It should make it impossible for them to call an early election without significant cross-party support. Even if it is sometimes circumvented by engineered no confidence motions, it should help to establish a new norm. If the new parliament served only the remainder of the previous term that would also be a disincentive to mid term dissolutions. No confidence motions will continue to come in different forms. If government or opposition have declared an issue to be one of confidence, the Speaker should indicate at the beginning of the debate whether the motion is a confidence motion. Dissolution rules need not be too elaborate, or restrictive. Political incentives should also prove a force for stability. Political parties do not like frequent elections; nor do the electorate, who may punish a party which forces an unnecessary election. Investiture votes are a more direct way of establishing who can command confidence, at the beginning of a parliament, and after successful no confidence motions. The power of proclamation should be reformed so that the Electoral Commission is put in charge of the election timetable, and the date for first meeting of the new parliament is set by the outgoing Speaker. It is very difficult to entrench the Fixed Term Parliaments Act. A future government and parliament can always amend or repeal it. It will create a norm, not a rigid constitutional rule. One way of entrenching the Act could be to give the Lords an absolute veto over any amendment under the terms of the Parliament Act 1911. The Wakeham Commission recommended against extending the veto powers of the Lords. 5 1 The Current system in the UK 1.1 Length of parliamentary terms The electoral timetable in Britain has grown out of several pieces of legislation. The Meeting of Parliament Act of 1694 (also known as the Triennial Act) provided that a UK parliamentary general election must be held every three years. This was amended by the Septennial Act of 1715 which extended the parliamentary term to a maximum of seven years. The Parliament Act of 1911 amended this to provide for the current five year maximum term. 1.2 Dissolution of parliament 1.2.1 The procedure The decision to call a general election is made by the Prime Minister, who asks the Monarch to dissolve parliament. This is done by a Royal Proclamation requiring the writs to summon a new parliament to be sent out. The general election timetable then comes into effect, running for eighteen days excluding weekends and bank holidays. 1 1.2.2 The Prime Minister’s role Parliament is dissolved by the Crown on the advice of the Prime Minister. The Prime Minister makes his or her choice independently of parliament, government, and often even their closest colleagues in the Cabinet. 1.2.3 The Royal Prerogative Dissolution of parliament is the Crown’s prerogative. Theoretically, the Monarch can exercise discretion over whether to grant a request for dissolution by the Prime Minister. The Lascelles principle provided that the Crown may justifiably refuse a request for dissolution where: (1) the existing Parliament was still vital, viable, and capable of doing its job; (2) a General Election would be detrimental to the national economy; [and] (3) he could rely on finding another Prime Minister who could carry on his Government, for a reasonable period, with a working majority in the House of Commons. 2 A modern formulation of the circumstances in which the Monarch might refuse a dissolution is in the draft Cabinet Manual: see section 1.3.1 below. 1.2.4 Announcing the dissolution Since 1945, the Prime Minister has made the announcement of dissolution to the press rather than to parliament. Parliament does not need to be sitting. The interval between the announcement and the dissolution itself has become shorter. From 1945 to 1970, there was an average interval of 16 days. 3 But in February 1974 Harold Wilson gave only 1 Representation of the People Act 1983, Schedule 1, §2(1)(a) 2 ‘Dissolution of Parliament: Factors in Crown's Choice’, The Times, 2 May 1950, p.5 3 For a table of dates relating to general elections since 1918, see: House of Commons Library Research Paper 09/44, Election Timetables, 13 May 2009 6 one day’s notice. Since then, the interval between announcement and dissolution has rarely been more than seven days, 4 maximising the advantage the government holds over the opposition. 1.3 Extraordinary dissolutions Early dissolutions may take place if the government loses the confidence of the House or decides to resign. 1.3.1 Constitutional rules governing issues of confidence It is a cornerstone of the British constitution that the government must have the confidence of the House of Commons. Chapter 6 of the draft Cabinet Manual says: A Government or Prime Minister who cannot command the confidence of the House of Commons is required by constitutional convention to resign or, where it is appropriate to do so instead, may seek a dissolution of Parliament.5 Should the government resign, rather than seek dissolution, it is for the Monarch to invite the person who appears most likely to be able to command the confidence of the Commons to serve as Prime Minister and to form a government. However, it is the responsibility of the parties and politicians to determine and communicate clearly who that person should be.6 The draft Cabinet Manual states the following with regard to the choice between dissolution and resignation: A Prime Minister may request that the Monarch dissolves Parliament and hold a further election.
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